U.S. v. Hanhardt

• Decision Date: 14 March 2001
• Docket Number: No. 00 CR 0853.,00 CR 0853.
• Citation: 134 F.Supp.2d 972
• Parties: UNITED STATES of America, Plaintiff, v. William A. HANHARDT; Joseph N. Basinski; Paul J. Schiro; Sam Destefano; Guy Altobello; and William R. Brown, Defendants.
• Court: U.S. District Court — Northern District of Illinois

134 F.Supp.2d 972

UNITED STATES of America, Plaintiff, v. William A. HANHARDT; Joseph N. Basinski; Paul J. Schiro; Sam Destefano; Guy Altobello; and William R. Brown, Defendants.

No. 00 CR 0853.

United States District Court, N.D. Illinois, Eastern Division.

March 14, 2001.

John F. Podliska, U.S. Attorney's Office, Chicago, IL, for U.S.

Thomas P. Sullivan, Jenner & Block, Chicago, IL, Thomas Day Decker, Thomas D. Decker Associates, Ltd., Chicago, IL, for William A Hanhardt, defendant.

Andrew Theodore Staes, Jeffrey Neal Cole, Cole & Staes, Ltd., Chicago, IL, John T. Theis, Law Office of John T. Theis, Chicago, IL, for Joseph N Basinski, defendant.

Paul Augustus Wagner, Attorney at Law, Chicago, IL, for Paul J Schiro, defendant.

James John Cutrone, James J. Cutrone, Attorney at Law, Chicago, IL, Santo John Volpe, Attorney at Law, Chicago, IL, for Sam Destefano, defendant.

Raymond D. Pijon, Attorney at Law, Chicago, IL, for Guy Altobello, defendant.

OPINION AND ORDER

NORGLE, District Judge.

Before the court are Defendants' motion for recusal under 28 U.S.C. §§ 47, 144, and 455(a), and motion for disclosure. For the following reasons, both motions are denied.

I. BACKGROUND

In a case that has garnered a bit of public attention, Defendants are charged with violating the criminal RICO statute, 18 U.S.C. § 1962(d), and conspiracy to commit an offense or fraud against the United States, 18 U.S.C. § 371. Defendant William Hanhardt had a long career with the Chicago Police Department, and held several high ranking positions in that Department. Hanhardt is charged with being the leader of a sophisticated criminal enterprise that dealt in stolen jewelry, and the remaining Defendants are charged with being part of the enterprise. The indictment alleges that beginning in the 1980's and continuing into 1998 Defendants stole and disposed of millions of dollars worth of jewelry from various locations across the United States.

The instant motions arise from this court's issuance of various orders in connection with the Government's lengthy pre-indictment investigation of Defendants. The Government's investigation lasted approximately four and half years, and spanned several states. During the investigation, the court authorized numerous wiretaps, in accordance with Title III of the Omnibus Crime and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. ("Title III"), and several pen registration/caller i.d. devices ("i.d. devices").

The first wiretap was assigned to and authorized by Chief Judge Aspen in accordance with Local Criminal Rule 50.2(2). On January 26, 1996 this court, acting as Chief Judge in Chief Judge Aspen's absence, ordered an i.d. device to be placed on Defendant Altobello's telephone. On January 30, 1996, Chief Judge Aspen ordered this court to continue acting as Chief Judge in his stead for the purposes of this investigation. In total, the court entered over 175 orders in connection with the investigation. This court, acting as Chief Judge, entered approximately 20%-30% of those orders.

At the end of the Government's investigation, indictments were brought against the Defendants, and the case was assigned to this court. Defendants now move this court to recuse itself from the case entirely, or alternatively, to recuse itself from ruling on anticipated motions to suppress evidence obtained from the various wiretap and i.d. device orders. Defendants also ask this court to "disclose its involvement" in connection with the Title III authorizations.

II. DISCUSSION

Defendants argue three grounds for recusal: (1) 28 U.S.C. § 455(a), which requires a judge to recuse himself when there is a reasonable basis to question the judge's impartiality; (2) 28 U.S.C. § 47, which forbids a judge to sit on an appeal of his own case or issue; and (3) 28 U.S.C. § 144, which requires a showing by affidavit that the judge has a personal bias or prejudice against, or in favor of, one of the parties. Defendants also raise, but do not develop, a fifth amendment due process argument. The court deems the fifth amendment argument waived because Defendants do nothing other than mention it, and fail to cite any authority in support of the point. See United States v. Jones, 224 F.3d 621, 626 (7th Cir.2000) (noting that an undeveloped argument speaks to its paucity, and refusing to consider the argument). The court addresses each of the alleged statutory grounds for recusal in turn.

A. Recusal Under 28 U.S.C. § 455(a):

Defendants assert that this court should recuse itself entirely from this case pursuant to 28 U.S.C. § 455(a), or, alternatively, that the court should recuse itself from ruling on anticipated motions to suppress evidence obtained pursuant to its own orders.

Section 455(a) states: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a); see generally Liteky v. United States, 510 U.S. 540, 542-55, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (discussing the "extra-judicial source doctrine"). Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. Hook v. McDade, 89 F.3d 350, 354 (7th Cir.1996). What matters is not the actual presence of bias, but the objective perception of bias. See Hook, 89 F.3d at 354; United States v. Balistrieri, 779 F.2d 1191, 1204 (7th Cir. 1985). The court is to inquire into how things appear to the "well informed, thoughtful observer, rather than the hypersensitive or unduly suspicious person." Hook, 89 F.3d at 354. Section 455(a) is intended to promote public confidence in the impartiality of the judicial process. See Pepsico Inc. v. Marion Pepsi-Cola Bottling Co., 99 C 3939, 2000 WL 263973, *12, 2000 U.S. Dist. LEXIS 2693, *34-35 (N.D.Ill. Mar. 6, 2000) (citing cases). Therefore, trivial risks of perceived partiality are not enough to mandate recusal. See Hook, 89 F.3d at 354 ("[T]he search is for a risk substantially out of the ordinary.") If such trivial risks were material, a system of peremptory strikes and judge shopping would occur, thereby undermining public confidence in the judiciary. Id.; Pepsico Inc., 2000 WL 263973, at *12, 2000 U.S. Dist. LEXIS 2693, at *35. Indeed, a court's duty of recusal is twofold: just as it must recuse itself in the face of valid reasons, it must not recuse itself without justification. New York City Housing Development Corp. v. Hart, 796 F.2d 976, 981 (7th Cir.1986). Appointed pursuant to Article III of the United States constitution, federal judges have an obligation to carry out the work of the court. Judges as custodians of governmental power under the Rule of Law must deal with difficult issues and cases and not just those which strike the judges as optimal.

Defendants labor valiantly to argue that this court's judicial involvement with the Government's pre-indictment investigation creates the risk that an objective observer would question this court's impartiality. Defendants point out that this court: (1) issued numerous wiretap and i.d. device orders, which involved probable cause determinations; (2) immunized witnesses; and (3) engaged in ex parte review of voluminous materials that were prejudicial to Defendants and involved alleged violations of law that were not charged in the indictment. The primary case Defendants rely on is United States v. Zarowitz, 326 F.Supp. 90 (C.D.Cal.1971). As discussed below, however, neither Defendants' argument nor Zarowitz is persuasive.

"Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. at 555, 114 S.Ct. 1147. The Supreme Court in Liteky states: "Opinions formed by a judge on the basis of facts introduced or events occurring ... do not constitute a bias or partiality unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. Here, Defendants' argument is based solely on the information that this court became privy to in its role as Acting Chief Judge. Defendants do not argue that this court's judicial knowledge evidences a deep-seated antagonism to them. Indeed, Defendants take pains to point out that their argument stems from the risk that an objective observer would question this court's impartiality because of the facts it learned while acting as Chief Judge. Standing alone, however, mere judicial knowledge is not a valid reason to question this court's impartiality. Liteky, 510 U.S. at 555, 114 S.Ct. 1147.

Defendants' argument also understates the objective standard. As the Seventh Circuit pointed out in Hook, the objective standard requires the risk of perceived bias to be "substantially out of the ordinary," because the "thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce bias into an adjudication." Hook 89 F.3d at 354. Contrary to this standard, Defendants assert that this court's judicial knowledge of this case creates the perception that this court will not be impartial. This argument simply points out what is inevitable in every judicial proceeding — that a judge becomes aware of the facts of the case. That is insufficient to warrant recusal. See id.

Although there has been no specific ruling from the Seventh Circuit as to whether a district court's orders entered during pre-indictment investigations warrant that court's recusal, several other Circuits have considered the issue and found that recusal is generally inappropriate. See Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 490 (1st Cir.1989) (emphasizing that nothing about the fact that the judge signed the orders would lead a reasonable person to question the jurist's impartiality); Cf. United States v. Foddrell, 523 F.2d 86, 87 (2nd Cir.1975) (holding that...